Citation Nr: 1042044
Decision Date: 11/08/10 Archive Date: 11/18/10
DOCKET NO. 06-21 335 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office
in New York, New York
THE ISSUE
Entitlement to service connection for asbestosis.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. W. Kim, Counsel
INTRODUCTION
The Veteran served on active duty from October 1967 to October
1970.
This case comes before the Board of Veterans' Appeals (Board) on
appeal from a July 2005 rating decision issued by the Department
of Veterans Affairs (VA) Regional Office (RO) in New York, New
York, which found no new and material evidence had been submitted
to reopen the claim. In a subsequent October 2006 supplemental
statement of the case (SSOC), the RO reopened and denied claim.
In June 2007, the Veteran requested a hearing but withdrew his
request in September 2007. Therefore, no hearing was held.
In a June 2009 decision, the Board reopened and remanded the
claim for further development.
The issue of entitlement to special monthly compensation
by reason of being housebound has been raised by the
record, but has not been adjudicated by the Agency of
Original Jurisdiction (AOJ). Therefore, the Board does
not have jurisdiction over it, and it is referred to
the AOJ for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran if
further action is required.
REMAND
In the June 2009 Remand, the Board instructed that the Veteran be
given an examination by certified pulmonologist. Due the
Veteran's agoraphobia, he was unable to attend an examination.
In effort to meet the duty to assist, the RO sent the case for an
opinion. However, the examiner was not a certified
pulmonologist. The Veteran's representative argues that the RO
did not adhere to the Remand instructions. Stegall v. West, 11
Vet.App. 268, 271 (1998). In a September 2009 VA examination
report, the examiner noted that CT scans did not show any
interstitial lung disease, only pleural plaques, and pulmonary
function test results showed no obstructive/restrictive disease.
The examiner then stated that the Veteran does not have
asbestosis or a disease due to asbestos exposure, only
radiological evidence of exposure to asbestos.
However, the Board observes that the February 2006 pulmonary
function test results were interpreted as showing moderate
restrictive lung disease. Thus, the RO should arrange for the
Veteran's claims file to be returned to the above examiner to
obtain an addendum that addresses the above interpretation.
Accordingly, the case is REMANDED for the following actions:
1. The RO should arrange for the Veteran's
claims file to be reviewed by a certified
pulmonologist for the purpose of preparing an
addendum that addresses the nature and
etiology of the moderate restrictive lung
disease found on the February 2006 pulmonary
function test. The claims file and a copy of
this Remand must be provided to the examiner
for review. The examiner should note in the
addendum that the claims file has been
reviewed.
The examiner should address whether the
moderate restrictive lung disease found on
the pulmonary function test changes the
earlier opinion. The examiner should
specifically express an opinion as to whether
it is at least as likely as not (whether
there is a 50 percent chance or more) that
the moderate restrictive lung disease is
etiologically related to the Veteran's period
of service, including possible exposure to
asbestos. A complete rationale must be given
for any opinion expressed, and the foundation
for all conclusions should be set forth.
2. Thereafter, the RO should readjudicate
the claim. If the benefit sought on appeal
remains denied, the Veteran and his
representative should be provided an SSOC and
given an opportunity to respond.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).